Article 1. General
1.1 These Terms and Conditions apply to all legal relations - i.e. offers (quotes), assignments, and other agreements - between Engagement Factory BV and a client to which Engagement Factory BV has declared these Terms and Conditions applicable, insofar as Parties have not explicitly deviated from these Terms and Conditions.
1.2 In case any provision of these Terms and Conditions is null or nullified, the other provisions of these Terms and Conditions shall remain in full force and Parties shall consult with each other in order to agree a new provision to replace the null or nullified one, which new provision must reflect the meaning of the null or nullified one to the extent possible.
1.3 In case a written offer, assignment, or other agreement explicitly deviates from any provision of these Terms and Conditions, the other provisions of these Terms and Conditions shall remain fully applicable.
Article 2. Offering and concluding the Agreement
2.1 All of Engagement Factory BV's offers are free of obligation, regardless of any acceptance term stated in the offer. Quoted prices are exclusive of VAT, unless stated otherwise.
2.2 Engagement Factory BV's offers are based on information provided by the client, based on which Engagement Factory BV makes an assessment, as accurate as possible, of the nature, duration, and magnitude of the assignment.
2.3 Agreements are concluded at the moment of receipt of a signed offer and/or assignment confirmation, or as soon as Engagement Factory BV starts with the execution of the assignment. The text and appendices of the Agreement replace and prevail over previous correspondence, arrangements, documents, and/or other information.
Article 3. Performance of the Agreement
3.1 Engagement Factory BV shall perform the Agreement to the best of their understanding and ability and in accordance with the standards of good workmanship. Engagement Factory BV has a best-effort obligation but no result obligation, unless explicitly stated otherwise in the Agreement.
3.2 If and insofar as required for the proper performance of the Agreement, Engagement Factory BV is authorized to have certain work carried out by third parties.
3.3 The client undertakes to provide Engagement Factory BV with all information that Engagement Factory BV designates as indispensable or that the client should reasonably know to be indispensable for the performance of the Agreement. If the information necessary for the performance of the Agreement is not provided to Engagement Factory BV on time, Engagement Factory BV is authorized to suspend the performance of the Agreement and/or to charge the client for the additional costs resulting from the delay at the usual rate.
3.4 If it is agreed that the performance of the Agreement is to take place in stages, Engagement Factory BV may suspend the parts belonging to a later stage until the client has approved the results of the previous stage in writing.
Article 4. Term of the contract; execution deadline
4.1 The Agreement is entered into for an indefinite period, unless explicitly agreed otherwise between Parties.
4.2 If a term for the completion of certain work is agreed during the term of the Agreement, such term is not a deadline unless explicitly agreed otherwise. If the execution deadline is exceeded, the client shall give Engagement Factory BV a written notice of default, allowing them a reasonable term to complete the work.
4.3 If it is agreed that the performance of the Agreement is to take place in stages, Engagement Factory BV will only start the work belonging to a later stage until the client has approved the results of the previous stage in writing.
Article 5. Changes to the Agreement
5.1 If it turns out, during the performance of the Agreement, that the proper execution of the assignment requires changes or additions to the agreed work, Parties shall change the Agreement accordingly on time and by mutual agreement.
5.2 If Parties agree to change or complement the Agreement, this may affect the time of completion of the agreed work. Engagement Factory BV shall inform the client of this as soon as possible.
5.3 If the change or addition to the Agreement has financial and/or qualitative consequences, Engagement Factory BV shall notify the client of this in advance. If a fixed price was agreed, engagement Factory BV shall inform the client, in said notification, to what extent the change or addition to the Agreement affects the price.
5.4 In contravention to paragraph 3, Engagement Factory BV cannot charge any additional costs if the change or addition is the result of circumstances that can be attributed to Engagement Factory BV.
Article 6. Term and termination of the Agreement
6.1 In case a fixed term is agreed, the Agreement ends automatically by expiration of the term of the Agreement or by the completion of the agreed work. The Agreement may be extended by mutual agreement between Parties, under the terms and conditions provided in the Agreement or, if agreed with Engagement Factory BV, under different conditions.
6.2 The Agreement may be terminated in writing by either Party at any time, regardless of weather the Agreement applies for a fixed or an indefinite term. In that event, the terminating Party shall give the other party at least one month's notice.
Article 7. Remuneration
7.1 Paragraphs 2, 4, 5, and 6 of this article apply to offers and agreements quoting a fixed remuneration. If no fixed remuneration is agreed, paragraphs 3, 4, 5, and 6 of this article apply.
7.2 Parties may agree a fixed remuneration when entering into the Agreement. The fixed remuneration is exclusive of VAT.
7.3 If no fixed remuneration is agreed, the remuneration shall be determined on the basis of the actual number of working hours at the agreed hourly rate.
7.4 If the Agreement has a term of more than 1 month, the remuneration and any expenses shall be invoiced monthly.
7.5 Even if Engagement Factory BV and the client agree a fixed remuneration or hourly rate, Engagement Factory BV is authorized to raise that remuneration or rate. Engagement Factory BV is authorized to pass on wage and price increases to the client. Such increase may only be charged to the client if communicated before the effective date.
7.6 If such increase is more than 10%, the client is authorized to terminate the Agreement with immediate effect.
Article 8. Payment
8.1 Payment shall be made within 30 days after the invoice date.
8.2 If the client fails to pay an invoice on time, the client is automatically in default. The client shall pay an interest of 1% per month, unless the statutory commercial interest rate provided in art. 6:119a of the Dutch Civil Code is higher, in which case the client shall pay the statutory commercial interest. The interest on the due sum shall be calculated from the moment that the client is in default to the moment of payment of the due sum in full.
8.3 In case of the client's liquidation, bankruptcy, or moratorium (or a proposal or application to that end), the client's obligations shall be due immediately.
8.4 Payments made by the client shall always be deducted from due interests and costs first, and then from the oldest due invoices, even if the client indicates that the payment in question is meant to settle a certain invoice.
8.5 Payment shall be made without applying any discount, settlement, or suspension.
Article 9. Defects, complaints, and expiration date
9.1 The client must report any complaints about performed work to Engagement Factory BV in writing within thirty days after discovery, or within thirty days after completion of the work in question, under penalty of losing any and all claims against Engagement Factory BV related to such complaints.
9.2 If a complaint is found reasonable, Engagement Factory BV shall make repairs and perform the work as agreed, unless this has become useless for the client by that time. If the latter is the case, the client shall notify Engagement Factory BV of this in writing. In case repairs in order to comply with the Agreement are no longer possible or useful, Engagement Factory BV shall only be liable within the bounds or article 11 (Liability).
9.3 The client's payment obligation remains in force even if they complain on time and with good reason. As such, the client is not entitled to any suspension of payment.
9.4 Any claim that the client may have against Engagement Factory BV becomes prescribed by lapse of one year after the due date.
Article 10. Collection costs
10.1 If the client is in default or fails to comply with their obligations (on time or at all), all reasonable extrajudicial costs incurred to obtain satisfaction shall be borne by the client. The extrajudicial costs shall be calculated based on what is usual in debt collection practices in the Netherlands, which, at the time of writing, is the calculation method in accordance with the Dutch Extrajudicial Collection Cost Standards Act [Wet normering buitengerechtelijke incassokosten]. However, if Engagement Factory BV incurs higher collection costs that were reasonably necessary, the client shall compensate for the actual costs. Any judicial and execution costs shall also be recovered from the client. The client shall also pay the statutory interest rate on the collection costs, in accordance with article 6:119 of the Dutch Civil Code.
10.2 The client shall compensate Engagement Factory BV for the actual judicial costs (including but not limited to lawyers' fees) in all instances, except for costs that the client demonstrates to be unreasonably high. This only applies if Engagement Factory BV and the client go to court with regard to an agreement to which these Terms and Conditions apply and the court decides entirely or mainly against the client.
Article 11. Liability
11.1 Engagement Factory BV is not liable for damage of any nature resulting from the fact that Engagement Factory BV worked with incorrect and/or incomplete information provided by the client, unless such incorrectness or incompleteness should have been clear to them.
11.2 Engagement Factory BV's liability for damages of any nature is limited to the maximum remuneration that the client is liable to pay. In case of assignments with a duration of more than four months, the liability is further limited to the sum that Engagement Factory BV charged the client for over the last four months. The liability is always limited to the amount covered under Engagement Factory BV's liability insurance.
11.3 The limitations of liability provided in these Terms and Conditions do not apply if the damage is due to Engagement Factory BV's malicious intent or gross fault.
11.4 In case Engagement Factory BV is held liable as described in the previous paragraphs of this article, Engagement Factory BV is only liable for replacement damages, i.e. a compensation for the value of the non-performance. In case the agreement is executed in stages as referred to in article 3, the replacement damages shall be limited to the replacement value of the non-performance in the stage in which the results are not approved. Engagement Factory BV is never liable for consequential damage, including but not limited to: lost turnover, lost profit, trading loss, loss of production, depreciation.
11.5 Parties are only liable for a culpable failure to comply with an agreement if one Party gives the other Party written notice of default immediately and properly, stating a reasonable term to remedy the failure to comply with their obligations. Such notice of default must describe the failure as accurately as possible to enable Parties to respond adequately.
Article 12. Force majeure
12.1 Parties shall not have to comply with any obligation towards the other in case they are hindered from doing so due to circumstances that cannot be attributed to them and for which they cannot be held liable under the law, by virtue of a legal action, or based on general opinion. In these Terms and Conditions, force majeure includes, in addition to the definition given in the law and jurisprudence, all external causes, foreseen or unforeseen, that are beyond Engagement Factory BV's control and make it impossible for Engagement Factory BV to comply with their obligations. Engagement Factory BV may also claim force majeure if the circumstance preventing them from complying with their obligations starts after Engagement Factory BV should have complied with their obligations.
12.2 Parties may suspend their obligations under the Agreement for the duration of the force majeure. If this period is longer than two months, either Party is authorized to dissolve the Agreement without having to pay the other Party any damages. Insofar as Engagement Factory BV has complied with part of their obligations under the Agreement by the time the force majeure sets in or will be able to comply with their obligations afterwards, and the completed or completable work has an independent value, Engagement Factory BV is authorized to invoice the completed or completable part separately. The client shall pay such invoice as if it were a separate agreement.
Article 13. Indemnification
The client indemnifies Engagement Factory BV against any claims from third parties who would suffer damages as a result of the execution of the Agreement. In case Engagement Factory BV is held liable for such damages, the client shall assist Engagement Factory BV both in and outside court, do everything that may be required of them in such event, and compensate Engagement Factory BV for any and all costs they incur (including lawyers' fees). In case the client fails to take adequate measures, Engagement Factory BV is authorized to do so themselves, without any notice of default. All resulting costs and damages suffered by Engagement Factory BV and third parties shall be borne by the client.
Article 14. Dissolution of the Agreement, due payments, and suspension
14.1 Engagement Factory BV's claims against the client shall be immediately due in the following cases:
- Circumstances that come to Engagement Factory BV's knowledge after concluding the Agreement and give Engagement Factory BV valid reason to fear that the client will not comply with their obligations;
- In case Engagement Factory BV asked the client to provide collateral for compliance when concluding the Agreement and such collateral is not provided or is insufficient.
14.2 In the cases referred to in paragraph 1 of this article, Engagement Factory BV is authorized to suspend further compliance with the Agreement or to dissolve the Agreement, all of this without prejudice to Engagement Factory BV's right to claim damages.
14.3 In case of circumstances with regard to people and/or materials that Engagement Factory BV hires/uses or intends to hire/use for the execution of the Agreement that are of such nature that the execution of the Agreement becomes impossible or becomes so problematic and/or disproportionally expensive that compliance cannot be reasonably required, Engagement Factory BV is authorized to dissolve the Agreement.
Article 15. Confidentiality
Both Parties are obliged to observe confidentiality with regard to any and all confidential information that they obtained from each other or from another source in the context of their agreement. Information is deemed to be confidential if this was communicated by the other party or if this follows from the nature of the information.
Article 16. Intellectual property
16.1 Without prejudice to the provisions of article 15 (Confidentiality) of these Terms and Conditions, Engagement Factory BV reserves the rights that they are entitled to pursuant to the Copyright Act.
16.2 All documents provided by Engagement Factory BV, such as reports, advice, designs, sketches, drawings, software, methods, and (model) contracts, as well as other products of Engagement Factory BV's thinking, in the broadest sense of the word, are exclusively intended for client's use and may not be multiplied, disclosed or made known to third parties without Engagement Factory BV's prior written consent.
16.3 Engagement Factory BV also reserves the right to use any knowledge acquired as a result of the performance of the work for other purposes, insofar as this does not imply the disclosure of confidential information to third parties.
Article 17. Processing (personal) data
17.1 Engagement Factory BV processes the client's (or the client's employees') data, including in any case the data stated in offers and agreements, in compliance with the personal data protection laws and regulations.
17.2 Engagement Factory BV needs to process personal data for the execution of the Agreement, compliance with any warranty obligations towards the client, and the optimum provision of services, product information, and/or personalized offers, among other things. If and insofar as personal data are processed for direct mailing purposes, any objections from the client (or their employees) shall be accepted.
17.3 Engagement Factory BV is authorized to make the aforementioned data available to third parties, especially to their affiliated companies.
17.4 The client and all other data subjects have the right to inspect their own personal data and to request the correction, limitation, deletion, or transfer of those data. Finally, the contract partner and all other data subjects may object against the use of their own data.
Article 18. Pledging claims
The client is not permitted to sell, pledge, or otherwise encumber any claims against Engagement Factory BV.
Article 19. Applicable law
All agreements between Engagement Factory BV and the client are governed by the laws of the Netherlands. The Oost-Brabant district court in 's Hertogenbosch, Netherlands has exclusive national and international jurisdiction with regard to disputes.
Article 20. Language
These Terms and Conditions have been translated into different languages. In case of conflict between the interpretation of the translated Terms and Conditions and the original Dutch version, the Dutch version shall prevail in all cases..